VOTE "NO" ON GUTTING PROTECTIONS AGAINST TORTURE.
OPPOSE THE PROPOSED CHANGES TO THE MCCAIN ANTI-TORTURE AMENDMENT AND THE
GRAHAM COURT-STRIPPING AMENDMENT.
PROPOSED CHANGES WILL MAKE IT HARDER --NOT EASIER--TO STOP THE FEDERAL GOVERNMENT FROM USING TORTURE AND
ABUSE.
December 14, 2005
RE: Proposed Changes to the McCain Anti-Torture Amendment and the
Graham Court-Stripping Amendment to the DOD Authorization Bill Jeopardize
Protections Against Torture and Abuse
Dear Senator:
The American Civil Liberties Union strongly urges you to oppose the proposed
changes to the McCain amendment and the Graham amendment to the Defense
Department authorization bill. Those changes limit liability for government
officials violating government-wide prohibitions against torture and abuse, even
when used against U.S. citizens in federal custody within the fifty states;
allow evidence obtained by torture and abuse to be the basis for indefinitely
holding a person; cut off all access to the courts by persons held at Guantanamo
Bay, except for very limited appeals; and undermine the legislation’s provisions
for applying the Constitution to government actions at Guantanamo Bay.
If the conference bill contains these changes, the ACLU strongly urges you to
vote "no" on the conference bill. These changes would be a big step
backward, instead of a step forward, in stopping the government from using
torture and abuse during interrogations. Instead of putting an end to the
federal government’s use of torture and abuse, Congress would remove many of the
remaining protections against torture and abuse. For the first time in its
history, Congress would authorize the use of evidence obtained by torture and
would provide special rights for government officials who commit torture or
abuse. In addition, it would also mark the first time in modern history that
Congress stripped all courts, including the Supreme Court, of jurisdiction to
stop torture or abuse, or other violations of due process, of a group of persons
whom the Supreme Court has held are entitled to the due process protections of
the Constitution.
Specifically, the proposed changes to the McCain amendment and Graham
amendment would:
Explicitly authorize the federal government to use evidence obtained by
torture in deciding whether to hold a person indefinitely and without
criminal charges at Guantanamo Bay. Congress has never authorized the use of
evidence obtained by torture or abuse. Under this proposal, even evidence
obtained through torture committed by countries such as Syria or Saudi Arabia
could be considered by the federal government in making its determination to
hold persons at Guantanamo Bay without any criminal charges. As a result, the
federal government would have an additional incentive to continue its practice
of kidnapping persons and sending them to countries that engage in torture, as a
way of obtaining additional evidence. The problem is compounded by the
government’s use of secret evidence during its proceedings--even refusing to let
the detainee know the evidence being used as the basis for detention.
Provide special rights for government officials who committed torture or
abuse. Ironically, the McCain amendment has no enforcement provision, but
the proposal would provide a defense to persons who violate it. Under the
proposal, government officials would be able to defend themselves by showing
that a "reasonable person" would not know that he or she was violating the law
by torturing or abusing a person. A proposal in the House of Representatives
goes even further and would indemnify government officials who engage in torture
and abuse. This means that the federal government alone would be paying the
legal bills and damages if a government official decides to torture or abuse
someone. Moreover, because the McCain amendment is not limited to foreign
citizens being held overseas, federal government officials would gain these
special rights even when torturing or abusing a U.S. citizen being held by the
federal government in one of the fifty states.
Strip the Supreme Court and all other courts of jurisdiction to decide on the
constitutionality and legality of nearly all aspects of the detention of persons
held at Guantanamo Bay. Despite the Supreme Court holding that persons held
at Guantanamo Bay have due process protections under the Constitution, the
proposal would expand the Graham amendment’s bar on habeas corpus petitions to
prohibit all federal jurisdiction, except for appeals of decisions of
combat status review tribunals and some military commissions at Guantanamo Bay.
Moreover, the Graham amendment would also be revised to state that the
legislation does not imply that the Constitution or any other laws apply to the
procedures or actions of the combat status review tribunals or military
commissions. The combined effect of these expanded court-stripping provisions
would be to turn Guantanamo Bay into a legal no-man’s-land.
Congress has a choice on which direction it will take on the government
engaging in torture and abuse. Congress still has an unprecedented opportunity
to pass the McCain amendment, in the same form it passed the Senate by a 90-9
vote, and take an important step towards restoring the rule of law and stopping
forever the federal government from torturing and abusing persons. We strongly
urge you to choose this path and pass the McCain amendment without changes, and
without the Graham amendment.
We strongly urge you to reject these proposed changes to the McCain amendment
and Graham amendment that would, for the first time, put Congress on the side of
the federal government providing special assistance or defenses for government
officials engaged in torture, and make evidence obtained by torture part of the
secret evidence used by the federal government to detain persons indefinitely.
If these proposed changes are in the final Defense Department authorization
conference bill, the ACLU strongly urges you to vote "no" on the conference
bill.
Sincerely,
Caroline Fredrickson
Director
ACLU Washington Legislative
Office
Christopher E. Anders
Legislative Counsel
ACLU Washington Legislative Office
